THOUGHT LEADER
Legal Outlook: School Bus Operator Compliance with COVID-19 Vaccine Regulations
Written By Matthew W. Daus, Esq. E
ven though the world is still in the throes of the virus, most U.S. schools were back to business— until the Omicron variant and staff shortages caused shutdowns again n many major U.S. cities.
Other schools have been open for in-person learning since the beginning of the school year, and emergency use au- thorization of Pfizer’s COVID-19 vaccine is now approved for children as young as 5 years old. Every new variant of the virus raises questions about vaccinations and how best to mitigate spreading the virus among workforces. Vac- cine mandates for school staff, which typically includes school bus operators, are increasingly common, and mask requirements continue despite vaccination status.1 As part of his COVID-19 Action Plan, President Joe
Biden called on states to make vaccinations mandatory for teachers and school staff.2
As of this writing, nine
states (CA, CT, HI, IL, NJ, NM, NY, OR, and WA) and the District of Columbia and Puerto Rico have vaccination requirements for K-12 school staff, including bus driv- ers. Last July, California was the first state to announce that it would require all state employees to get the “jab” or submit to regular testing. New York also requires bus drivers to submit to weekly COVID-19 testing, unless they show proof of vaccination,3
worn on buses regardless of vaccination status.4 Biden’s COVID-19 Action Plan also tasked the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) with developing a rule requir- ing certain employers with more than 100 workers to implement “vaccine-or-test” policies. On Nov. 5, OSHA published its Emergency Temporary Standard (ETS) implementing the president’s vaccine mandate by re-
26 School Transportation News • FEBRUARY 2022
quiring covered employers with 100 or more employees to develop policies either to mandate COVID-19 vacci- nations for all employees or allow employees the option to undergo weekly testing and wear a face covering at work rather than be vaccinated.5 However, 27 states and other parties sued to block the
rule from taking effect, and a federal court put the OSHA vaccine-or-test mandate on hold temporarily. On Dec. 17, a federal appeals court overturned the stay, and OSHA acted quickly to set a Jan. 10 deadline for employers to comply with the ETS rule. Then, on Jan. 13, the U.S. Supreme Court reinstated. the temporary hold on the ETS rule, pending further review before the U.S. Court of Appeals for the Sixth Circuit. That prompted OSHA on Jan. 25 to withdraw the ETS as it focuses “on a permanet COVID-19 health standard.” The Supreme Court’s decision does not affect
and requires masks be
COVID-19 vaccination and testing requirements at the state and local levels that are mandated independent of what OSHA attempted to do. The first thing that school transportation companies need to do is determine if they are covered by such a requirement. Some jurisdic- tions already have adopted vaccine mandates without a testing/masking alternative except for those with a bona fide medical or religious exemption. For example, workers in New York City who perform in-person work must show proof of vaccination.6
Under
the NYC order, businesses may not allow any unvacci- nated workers—including employees and independent contractors—to come to their workplace. A workplace is considered any location—including a vehicle—where work is done in the presence of at least one other person.
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